MAIN POINT
Omission or commission in discharge or purported exercise of official duty requires sanction for prosecution.
The act or omission must have been done by the public servant in course of his service and in discharge of his duty.

JUDGMENT :

Arun Mishra, J.

Leave granted.

2. The appeal arises out of the order dated 21.1.2011 passed by the High Court of Chhatisgarh at Bilaspur, thereby affirming the order dated 29.6.2002 passed by the Sessions Judge and Judicial Magistrate First Class, Dharamjaigarh, rejecting the application filed by the accused appellant for discharge on the ground of requirement of sanction to prosecute under section 197(1) Cr.P.C.

3. As per the prosecution case, the appellant was in-charge of Patthalgaon Hospital, District Raigad where on 1.1.1995 L.T.D. operation of Runiabai was conducted by Dr. A.M. Gupta. Thereafter she was sent home. As Runiabai vomited Dr. A.M. Gupta was approached. He sent one Aklu Ram to administer some treatment. However on 2.2.1995 she was brought to the Primary Health Centre, Patthalgaon where she was admitted and died at 2 p.m. Her post mortem was conducted. After 25 days, First Information Report was lodged and ultimately Police filed chargesheet under section 304-A IPC on 16.10.1996 in the court of Judicial Magistrate First Class, Dharamjaigarh, as against appellant A.K. Jha, Dr. A.M. Gupta and Aklu Ram. Charges under section 304-A were framed as against Dr. A.M. Gupta and the appellant. Both of them filed an application for discharge under section 197 Cr.PC on the ground that sanction to prosecute was required and they could not be prosecuted without previous sanction. Vide order dated 27.6.2001 passed by the Judicial Magistrate First Class, the application filed by Dr. A.M. Garg had been allowed. However, the application filed by the appellant was rejected on the ground that he was in-charge of the Primary Health Centre and he failed to provide Government jeep for shifting the patient Mrs. Runiabai to District Hospital, Raigad whereas the appellant himself travelled in the jeep to attend an official monthly meeting at Raigad which was District Headquarters. The Primary Health Centre did not have ambulance. Thus, negligence was attributed to the appellant for not providing the said vehicle for shifting the patient to District Hospital, Raigad. A revision was preferred against the rejection of prayer and thereafter a petition was filed under section 482 Cr.P.C. before the High Court, the same having been dismissed, the appellant is before us.

4. It was vehemently contended by learned counsel appearing on behalf of the appellant that the allegations constituted failure to provide official vehicle for shifting the patient to District Hospital, Raigad. As it was an act in discharge of official duty, as such the sanction to prosecute was necessary. Whereas the application filed by Dr. A.M. Gupta had been allowed, the prayer made by the appellant has been illegally rejected. Learned counsel appearing on behalf of the State supported the order and contended that it was negligence on behalf of the appellant in not providing official vehicle to the patient due to which she could not be shifted to District Hospital, Raigad and died. Thus, sanction was not required in the instant case.

5. It is apparent from the facts of the instant case that the allegation against the appellant is of omission in discharge of official duty in not providing Government vehicle for shifting the patient from Primary Health Centre to District Hospital, Raigad; whereas he himself travelled in the vehicle in question for attending the monthly official meeting at the District Headquarters. In our considered opinion, it was an act or omission in discharge of the official duty. The sanction to prosecute was necessary. In this case, the accused was acting in discharge of his official duty when he refused to provide the official vehicle. The refusal is directly and reasonably connected with his official duty, thus sanction is required for prosecution as provided under section 197(1) Cr.PC. It is not disputed that no ambulance was provided to the Primary Health Centre.

6. The question arises whether omission to provide the official jeep which was not